FEDERAL COURT OF AUSTRALIA

XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal on 15 July 2021 in file number 2021/2697 affirming the decision of a delegate of the Minister administering the Migration Act 1958 (Cth) dated 14 April 2021 to exercise the discretion to refuse to grant the applicant a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) be quashed.

2.    A writ of mandamus issue directing the Administrative Appeals Tribunal to review the decision of the delegate referred to in Order 1 according to law.

3.    The first respondent pay the applicant’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant seeks an order that a decision of the Administrative Appeals Tribunal affirming a decision of a delegate to refuse to grant the applicant a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) be quashed. The applicant also seeks a writ of mandamus directed to the Tribunal requiring it to determine the application according to law.

2    The application in this proceeding is made under s 476A of the Act. The first respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The second respondent, the Tribunal, filed a submitting appearance.

3    The applicant is a 39-year-old national of Ghana who arrived in Australia in November 2006 aged 24 as the holder of a Subclass 101 Child visa sponsored by his father. He married an Australian citizen in 2017 and remains so married. The applicant has a biological daughter from a previous relationship who has been in foster care since birth.

4    The applicant has limited schooling. He can only read and write a little in the Akan language, and cannot read or write in English. He has a history of physical and mental health issues, including alcohol dependence, depression, post-traumatic stress disorder (PTSD) and schizophrenia. His mother passed away when he was four years old. He thereafter lived with his grandmother, but after she died he experienced a period of homelessness. He has four siblings who all live in Australia, and he has no family or friends in Ghana.

5    The applicant has a lengthy criminal history commencing shortly after his arrival in Australia, which includes but is not limited to the following convictions and sentences between 2008 and 2016:

    In February 2008, the applicant was convicted of two counts of common assault (two fines of $2,200).

    In January 2009, the applicant was convicted of common assault and contravention of an apprehended violence order (AVO) (1 month’s imprisonment).

    In May 2009, the applicant was convicted of a number of offences, including three counts of common assault (9 months’ imprisonment).

    In November 2009, the applicant was convicted of contravention of an AVO (12 month good behaviour bond).

    In August 2010, the applicant was convicted of an assault occasioning bodily harm, common assault and larceny (8 months and 3 days’ imprisonment).

    In April 2011, the applicant was convicted of a breach of a Police Family Violence Order.

    In August 2012, the applicant was convicted of a number of offences including common assault, two counts of destruction and damage of property, failure to appear in accordance with a bail undertaking, and stalking and intimidation (12 month suspended sentence, 12 months’ probation).

    In August 2013, the applicant was convicted of a number of offences including common assault (12 months’ imprisonment), two counts of destruction or damage of property (12 months’ imprisonment), failure to appear in accordance with a bail undertaking (12 months’ imprisonment), stalking and intimidation (12 months’ imprisonment), driving with middle range prescribed concentration of alcohol (PCA) (9 months’ imprisonment), and driving with high range PCA (18 months’ imprisonment).

    In September 2016, the applicant was convicted of a number of offences including driving under the influence of alcohol (9 months’ imprisonment) and driving during a disqualification period (9 months’ imprisonment).

6    In December 2016, the applicant’s Child visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act.

7    The applicant did not submit a request for the revocation of the cancellation of his Child visa within the prescribed period pursuant to s 501CA(4) of the Act. He has been in immigration detention since 2017.

8    In February 2018, the applicant lodged an application for a Subclass 866 Protection visa, claiming to fear harm in Ghana for reasons associated with his mental ill-health including what he says is the inadequate, dangerous and discriminatory treatment of persons with mental health issues, and lack of available family, medical and community support for people with mental health issues, in Ghana.

9    In December 2018, a delegate of the Minister refused the applicant’s Protection visa application as they were not satisfied that the applicant is a person in respect of whom Australia owes protection obligations.

10    The applicant sought merits review of that decision in the Tribunal. In March 2019, the Tribunal found that the applicant was a person in respect of whom Australia owes protection obligations pursuant to s 36(2)(a) of the Act and remitted the matter for reconsideration by the Minister. The Tribunal’s findings included the following:

(1)    After the applicant came to Australia, he became involved in a troublesome relationship which led to some serious alcohol abuse. The applicant is now in a stable marriage with another person and has a daughter from his previous relationship. The applicant’s close family members all live in Australia and he has no close relatives in Ghana.

(2)    The applicant suffers from PTSD and a history of psychosis consistent with Other Specified Schizophrenia Spectrum and Other Psychotic Disorder. He is being treated with anti-psychotic and anti-depression medication and for the foreseeable future he will require uninterrupted pharmaceutical treatment.

(3)    If the applicant was forced to return to Ghana, he may not be able to access the particular medication he is currently taking which assists him to manage his illness. Further, he has no family or other support, including financial support, in Ghana.

(4)    If the applicant became mentally unwell and demonstrated behaviours of a mentally unwell person in Ghana, he could be forcibly placed into a prayer camp by members of the public or the police because there is very minimal care available in psychiatric hospitals whereas there are several hundred prayer camps operated across the country.

(5)    The applicant faces a real chance of serious harm by reason of his membership of a particular social group, being persons suffering from mental illness in Ghana, should he return to Ghana. This is on account of reportedly common and ongoing prejudicial attitudes towards such persons due to superstitious perceptions about the mentally ill.

11    In April 2021, a delegate of the Minister decided under s 501(1) of the Act to refuse the Protection visa on the basis that the applicant does not pass the character test. That section provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

12    The applicant sought merits review of this decision in the Tribunal. There was a two day hearing before the Tribunal in June 2021.

Tribunal decision summarised

13    Before the Tribunal, there was no dispute that the applicant failed to pass the character test under s 501(6) of the Act as he had a substantial criminal record as defined in s 501(7)(d). The Tribunal turned to consider whether it should exercise the discretion under s 501(1), conferred on the Tribunal, to refuse to grant the applicant a Protection visa, having regard to the considerations in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) which was given by the relevant Minister under s 499 on 8 March 2021.

14    Direction 90 at paragraph 8 states that when a decision-maker is making a decision under ss 501(1), 501(2) or 501CA(4) of the Act, the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia; and

(4)    expectations of the Australian community.

15    Direction 90 elaborates on each of these primary considerations. At paragraph 9, Direction 90 states that in making a decision under the aforementioned sections, the following other considerations must also be taken into account, where relevant:

(1)    international non-refoulement obligations;

(2)    extent of impediments if removed;

(3)    impact on victims; and

(4)    links to the Australian community, including:

(a)    strength, nature and duration of ties to Australia; and

(b)    impact on Australian business interests.

16    On 15 July 2021, the Tribunal, exercising the discretion under s 501(1), affirmed the decision to refuse the applicant’s Protection visa application.

17    In its written reasons (T), the Tribunal noted that, as outlined in Direction 90, in relation to “Primary Consideration A: Protection of the Australian Community”, there are two issues to be considered: first, the nature and seriousness of the applicant’s conduct, and second, the risk of harm to the Australian community.

18    In relation to the nature and seriousness of the applicant’s conduct, the Tribunal noted that the applicant started to offend almost immediately after he arrived in Australia in 2006, and he continued to offend until 2016. The Tribunal concluded that, overall, the applicant’s history of violence, both in a domestic setting and elsewhere, together with his repeated driving offences, must be regarded as extremely serious: T[64]. In relation to his risk of re-offending, the Tribunal summarised the evidence of two experts in relation to the applicant’s mental health and concluded that the applicant is at a moderate risk of re-offending, noting that despite the evidence of the various experts, the applicant was convicted of drink driving offences committed in January 2016 at a time when he was undergoing drug and alcohol treatment: T[81]. Further, the Tribunal found that there are significant doubts as to the applicant’s prospects of rehabilitation, based on the applicant’s history of alcohol abuse, continuing failure to take responsibility for his actions, and lack of evidence of ongoing treatment in detention: T[83].

19    With respect to the consideration of rehabilitation, and of central relevance to this application, the Tribunal commented (T[83]):

There is also some uncertainty as to the relationship with his current partner, PD, based on the evidence of the AVO taken out on 28 April 2016, the circumstances of which were never satisfactorily explained. Given that the relationship with PD is said to be an important factor in the Applicant’s rehabilitation prospects, evidence of violence in that relationship, particularly when the Applicant was said to be abstaining from drinking at the time, must be viewed with concern.

20    Accordingly, the Tribunal held that it could not be satisfied that the applicant does not pose an ongoing risk of harm to the Australian community and characterised the risk as moderate. The Tribunal considered that this evidence weighs heavily in favour of the exercise of the discretion under s 501(1) of the Act to refuse the grant of the visa.

21    In relation to “Primary Consideration B: Family violence committed by a non-citizen”, the Tribunal noted that the applicant has been found guilty of a number of serious incidents of family violence, including repeated breaches of AVOs, both against his first and second partners, as well as his current partner, PD. The Tribunal noted that there is a police record of an AVO being taken out on 28 April 2016 (the 2016 AVO) by the police against the applicant to protect PD, and attached to the decision a copy of a corrective services report dated 10 December 2016: T[87]. The 2016 AVO is the same AVO as that referred to at [19] above. It is at the heart of this case.

22    The Tribunal stated that the applicant is an undisputed perpetrator of domestic violence and, given the number of offences committed by him against various partners, it may not be unfair to describe him as a serial offender. The Tribunal commented (T[89]) that the fact that the applicant was prepared to insinuate that his victims were to blame for his domestic violence reflects very badly on him, and, again with reference to the 2016 AVO, that:

It is also of concern that both the Applicant and PD attempted to paint a picture of domestic bliss before the Tribunal, which is somewhat at odds with the fact that an AVO was taken out by the police on behalf of PD, shortly before the Applicant entered into immigration detention.

23    The Tribunal found that the evidence of the applicant’s ongoing family violence, commencing in 2011 and continuing up until the last instance to have occurred in 2016 (being a further reference to the 2016 AVO), must be taken extremely seriously and weighs heavily in favour of the exercise of the discretion to refuse to grant the visa: T[90].

24    Without summarising the Tribunal’s reasons related to “Primary Consideration C: Best interests of minor children” in detail, it is worth noting that it gave this consideration low to moderate weight in the applicant’s favour against the exercise of the discretion to refuse to grant the visa: T[100].

25    In relation to “Primary Consideration D: Expectations of Australian Community”, the Tribunal considered that having regard to the provisions of Direction 90 and the applicant’s offences, the Australian community would expect that the applicant is not given the privilege of holding an Australian visa, which consideration was given heavy weight against the applicant and in favour of the exercise of the discretion to refuse to grant the visa: T[102]-[103].

26    The Tribunal then addressed the other, non-primary, considerations set out in Direction 90. In relation to international non-refoulement obligations, the Tribunal noted that the fact that the applicant faces a real chance of serious harm if he were returned to Ghana meant that it must give due consideration to the legal consequences if it were to affirm the delegate’s decision, namely, that if the grant of a visa were refused, the applicant could face a period of indefinite detention: T[105]. The Tribunal member concluded that, whilst not determinative of the case, he gave this issue “very heavy weight” against the exercise of the discretion to refuse to grant the visa: T[111].

27    In relation to the applicant’s links to the Australian community, the Tribunal accepted the evidence of a strong relationship between the applicant and his wife, PD. The Tribunal repeated that the 2016 AVO had been taken out in favour of PD, and noted that the expert evidence was that the ongoing relationship between PD and the applicant was very important to his prospects of rehabilitation: T[112]. The Tribunal concluded that apart from the applicant’s relationship with PD and his daughter, he does not seem to have developed close links either through work or socially within the Australian community, and has spent a considerable period of his time in Australia in detention: T[117]. The Tribunal gave this consideration moderate weight in the applicant’s favour against the exercise of the discretion to refuse to grant the visa: T[118].

28    With respect to the extent of impediments if the applicant were removed from Australia, the Tribunal noted that the applicant would be able, perhaps with difficulty, to re-establish himself in Ghanaian society: T[119]. The Tribunal acknowledged that it is highly unlikely that the applicant would have access to similar health facilities in Ghana to those available to him in Australia, and would suffer disadvantage as he would need to re-establish himself in the community and make arrangements to receive mental health treatment. The Tribunal gave this consideration moderate to heavy weight in the applicant’s favour against the exercise of the discretion to refuse to grant the visa: T[120]-[122].

29    The Tribunal concluded its reasons by noting that it considered that the prospect of indefinite detention raises serious human rights concerns and gave this matter very heavy weight due to its seeming incompatibility with human rights in a democratic society: T[124].

30    On balance, the Tribunal was reluctantly of the opinion that its reservations were outweighed by the cumulative weight of the considerations set out in Direction 90, especially the primary considerations: T[125]. Accordingly, the Tribunal found that the correct or preferable decision was to affirm the decision under review, being the decision to exercise the discretion to refuse the applicant a protection visa under s 501(1) of the Act: T[126].

The review application

31    The sole ground in the application for review is that the Tribunal erred by failing to consider relevant evidence when it affirmed the decision of the delegate dated 14 April 2021. The particulars to the review ground include the following:

(b)    In affirming the decision under review, the Tribunal:

(i)    referred to the fact that there was evidence in police records of an apprehended violence order (AVO) having been taken out in 2016 for the protection of the Applicant’s wife: [83] and [87] of the Tribunal’s decision;

(ii)    found that “It is also of concern that both the Applicant and [his wife] attempted to paint a picture of domestic bliss before the Tribunal, which is somewhat at odds with the fact that an AVO was taken out by the police on behalf of [the Applicant’s wife], shortly before the Applicant entered immigration detention.”: [89] of the Tribunal’s decision;

(iii)    found that the Applicant’s history of family violence weighed heavily in favour of exercising the discretion to refuse his visa: [90] of the Tribunal’s decision; and

(iv)    made findings that “Having regard to the provisions of Direction 90 and the Applicant’s offences, the Australian community would expect that the Applicant is not given the privilege of holding an Australian visa” and that the Applicant’s risk of reoffending was “moderate”: [102]-[103] and [84]-[85] of the Tribunal’s decision.

(c)    In making the findings referred to above …, the Tribunal:

(i)    did not consider the evidence given by the Applicant and his wife in their supplementary witness statements dated 18 and 21 June 2021 respectively, and in their oral evidence at the hearing, about the AVO having been issued in response to a misunderstanding by the police about a particular incident; and

(ii)    did not demonstrate in their decision any active, intellectual engagement with the abovementioned evidence given by the Applicant and his wife.

32    The originating process asserts that the matters referred to above were material to the outcome of the review as they were directly relevant to the Tribunal’s exercise of the discretion to refuse the applicant’s visa, and consequently, the Tribunal’s decision was affected by jurisdictional error.

33    The parties tendered a voluminous court book which, relevantly, did not contain the transcript of the two-day June 2021 Tribunal hearing. Particularly relevant to the application before the Court is that before the Tribunal the applicant relied on a statement dated 27 May 2021 and a supplementary statement dated 18 June 2021. The applicant also relied on a statement by his wife, referred to as PD, dated 27 May 2021 and a supplementary statement by her dated 21 June 2021. It is the supplementary statements dated 18 June 2021 and 21 June 2021 that are of particular relevance to the current application.

34    During the hearing of the review proceeding, it became apparent that I could not properly consider whether the Tribunal gave adequate consideration to the evidence given by the applicant and his wife in their supplementary statements and oral evidence in relation to the 2016 AVO without the benefit of a transcript of the Tribunal proceeding. I accordingly acceded to the applicant’s application to adjourn the hearing for the purpose of procuring the transcript. I made orders allowing for the applicant to make short supplementary submissions in relation to the transcript, once it was available, and for the Minister to make any short supplementary submissions in reply.

35    The applicant subsequently filed an affidavit annexing the transcript of the Tribunal hearing. I have now had the benefit of reading the transcript and the applicant and Minister’s short supplementary submissions.

Tribunal’s consideration of the 2016 AVO

36    As mentioned, the Tribunal considered the 2016 AVO principally in the context of the primary consideration B, namely “family violence committed by the non-citizen”, but also in the context of primary consideration A, “protection of the Australian community”.

37    It is to be observed that the Minister’s statement of facts, issues and contentions (SFIC) before the Tribunal lists a number of convictions that might be classified as arising from family violence, as well as there being evidence of other incidents “concerning other family violence apparently committed by the applicant”. In respect of one of those incidents, it was stated that there is “a suggestion in the corrective services records that the applicant was the subject of an ADVO issued for the protection of his current partner, [PD], on 28 April 2016” (emphasis added). The date makes it clear that that is a reference to the 2016 AVO.

38    The applicant’s SFIC before the Tribunal states the following:

The Applicant has had no offences against his current partner. His current partner’s evidence is that she holds no fears of him whatsoever.

39    There was thus a clear contest before the Tribunal between the applicant and the Minister with respect to the applicant’s conduct towards PD. That is the context in which the 2016 AVO was centrally relevant.

40    The applicant and PD each gave evidence on the first day of the Tribunal hearing. The applicant and PD’s supplementary statements dated 18 and 21 June 2021, respectively, were admitted into evidence.

41    The applicant’s supplementary statement includes the following with regard to the 2016 AVO:

(1)    At the relevant time, the applicant and PD lived together. The applicant used to go to work and come back late at night. The main door was locked for safety, even against a key, and the backdoor was the door that the applicant had to use. Normally, he would knock and PD would let him in.

(2)    On the day in question, he started knocking at the door. There was no answer. So he went to the window, and saw that PD was lying down inside.

(3)    The applicant was worried about her because he knew that she was taking medication at the time and he did not know if something had happened. He went to the backyard, and opened the door to go inside. He pushed the door, entering the house and PD woke up.

(4)    PD started screaming. She thought it was an intruder. He said “it’s me!”, but she seemed dazed and unable to take it in. He left her and went to stay at a friend’s house because he knew she was safe and he did not want to scare her anymore. He thought that they would sort it out the next day and he would let her rest in the meanwhile.

(5)    The next day, PD told him that the police had come the night before. She said that they had to go to the police station, so they went together and they were interviewed separately.

(6)    The applicant told the police what had happened, and they said for him to go back home until it was time to go to court.

(7)    At court, they were told to sit separately. PD got mad at that point and said “I’m the one who called you guys”, but they would not listen to her.

(8)    The applicant said that after he had explained the situation to the magistrate, the magistrate said “it doesn’t sound like a serious situation”. He said that the prosecutor pushed for an AVO, which was not agreed by him and PD but it was made by the Court. The applicant said that he was never violent or oppressive with PD on that occasion, or any other occasion.

42    PD’s supplementary statement included the following with regard to the 2016 AVO:

(1)    PD had had a history of difficult issues at work over a sustained period of time which resulted in her struggling to cope and being on anti-depressants.

(2)    On the day in question, she had had a bad day. She had had “a couple of wines” with her medication which had knocked her out.

(3)    When the applicant came home, she did not hear him knocking. When he came into the house, she thought that the house was being broken into. She heard the noise, and was not fully conscious. She just “grabbed the phone and called the police” thinking that someone had broken into the house.

(4)    She says that she hung up once she worked out that there was no intruder, but because the police knew that it was her number they came to the house anyway. She said that she told them that it was not a domestic issue, but only a misunderstanding on her part, but they would not listen to her.

(5)    She said that at court she tried to tell the magistrate what had really happened but “the magistrate wouldn’t believe a word I said”.

(6)    The applicant has never laid a hand on her, ever.

43    During the Tribunal hearing, both the applicant and PD were asked questions in relation to various apprehended violence orders and family violence orders made against the applicant in relation to various ex-partners. For example, counsel for the Minister took the Tribunal to material concerning the applicant being convicted of contravening an AVO taken out against him in relation to an ex-partner, DW, in January 2009, for which he served a sentence of one month’s imprisonment. The applicant appeared to acknowledge that this occurred.

44    During the cross-examination of PD, the following exchange occurred:

And are you aware that [the applicant’s] been convicted of breaching apprehended violence orders?---Yes.

Do you know what happened in relation to those incidents or just that they occurred?---Just that they occurred. That’s not who I’m married to, that’s not the man I have known for the past nine years.

Okay. Can you elaborate on what happened in those offences, or do you not know?---In his past I know that there was, but, like I said, I don’t know the exact details. I just – after just reading the documents that I – because my husband is illiterate and so I read a lot of his documents, so that’s how I know by what I read.

45    PD’s answer to the second of those questions is inconsistent with the contention that the applicant was physically violent, or threatened to be violent, towards her such as to justify the 2016 AVO. However, neither PD nor the applicant was asked any questions about the 2016 AVO.

46    Save for the Tribunal mentioning that there were supplementary statements from the applicant and PD (at T[18] and T[30]), it did not identify or in any way summarise or address the evidence contained within the statements. More specifically, there is no consideration given to or analysis of the explanations provided by the applicant and PD that the 2016 AVO was taken out as a result of a misunderstanding after PD called the police one night mistakenly believing that there was an intruder in the house when the applicant returned home.

Consideration

47    Since the hearing in this proceeding, the High Court handed down judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17. In the context of whether there is “another reason” to revoke a decision to cancel a visa because the visa holder fails to pass the character test pursuant to s 501CA(4)(b)(ii), which is a different although closely analogous discretion to the discretion under s 501(1), the plurality of Kiefel CJ, Keane, Gordon and Steward JJ made a number of statements about the nature of a delegate’s task. Those statements are equally applicable to the task of the Tribunal in the present case. It is worth quoting them (omitting the footnotes):

[24]     Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[25]     It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26]     Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

[27]     None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker’s reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

48    Neither the applicant nor the Minister has sought the opportunity to make further submissions following the publication of the judgment in Plaintiff M1/2021.

49    With reference to the two alleged errors by the Tribunal as put in particular (c) of the review application, quoted at [31] above, two observations are immediately apparent. First, the present case falls to be decided principally with reference to the first alleged error, namely that the Tribunal did not consider the evidence given by the applicant and PD in their supplementary witness statements about the 2016 AVO. Secondly, the second alleged error, namely that the Tribunal did not demonstrate in its decision “any active, intellectual engagement” with that evidence, uses language that is now recognised as having a danger of inviting impermissible merits review in which the court substitutes its decision for that of the administrative decision-maker: Plaintiff M1/2021 at [26].

50    It is now said that it should rather be asked whether (1) the Tribunal read, identified, understood and evaluated the relevant representations, and whether it brought its mind to bear upon the facts stated in the representations and the arguments or opinions put forward (Plaintiff M1/2021 at [24]), or (2) whether the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument (Plaintiff M1/2021 at [27]). It must nevertheless be recognised that the Tribunal is not required to make actual findings of fact as an adjudication of all material claims that are made: Plaintiff M1/2021 at [24].

51    The Minister contends that the supplementary statements of the applicant and PD bear an obvious frailty in being regarded as adequately explaining the circumstances of the 2016 AVO, given that both the applicant and PD indicated that the magistrate did not accept their explanations and issued the AVO despite PD’s objections.

52    The Minister further contends that if the Tribunal had genuinely overlooked or not considered the supplementary statements, the word “satisfactorily” would logically have been omitted from T[83] of its reasons; he contends that the statement that the 2016 AVO was not “satisfactorily” explained necessarily acknowledges that there was an explanation, but that it was insufficient. I do not accept this. I am not satisfied that the inclusion of the word “satisfactorily” necessarily evinces the Tribunal’s actual consideration of the contents of the supplementary statements. That is principally because it is hard to understand how it was concluded that an incident was not satisfactorily explained when the explanation that was given was not referred to and no further explanation was sought. It is more likely that the Tribunal regarded the 2016 AVO incident as not having been “satisfactorily explained” because it overlooked that detailed explanations were given by both the applicant and PD. If those explanations were considered and not accepted, one would expect that to have been said and some reasoning to have been given.

53    The Tribunal appears to have accepted that the magistrate issued an AVO because of a violent incident or relationship between the applicant and PD, and it attached a copy of an excerpt from the relevant corrective services report: T[87]. However, while that document indicates that an AVO was taken out in April 2016 against the applicant, it does not provide any detail in relation to the events leading to the AVO. The Tribunal did not elaborate on why it considered that the circumstances of the 2016 AVO were “never satisfactorily explained” (T[83]) by providing further reasoning, for example, in relation to any perceived inconsistencies between the documentary evidence and the evidence in the applicant and PD’s supplementary statements, or that it was disbelieving or otherwise rejecting their evidence.

54    The Tribunal is not obliged to accept the evidence of the applicant and PD. Nor is it required to give a “line by line refutation” of the applicant’s evidence, or refer to every piece of evidence or contention advanced by a claimant: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [48]-[49] per Besanko, Barker and Bromwich JJ; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [14].

55    In my assessment, the following factors establish that the evidence in the supplementary statements, which is substantial, was not considered by the Tribunal:

(1)    neither the Minister nor the Tribunal questioned the applicant or PD about the 2016 AVO, indicating that that issue was given no particular attention or prominence during the hearing and making it more likely that the significance of the supplementary statements was overlooked;

(2)    there is no mention of any of the evidence in the supplementary statements in the parties’ representations to the Tribunal; and

(3)    there is no mention of any evidence in the supplementary statements in the Tribunal’s reasons.

56    The Tribunal nonetheless stated that the 2016 AVO was “never satisfactorily explained” and that the applicant and PD’s attempt to “paint a picture of domestic bliss” was at odds with the 2016 AVO. I therefore infer that the Tribunal did not bring its mind to bear upon the facts stated by the applicant and PD, nor did it sift those facts, attributing whatever weight or persuasive quality was thought appropriate: Plaintiff M1/2021 at [24].

57    It is significant that the 2016 AVO appears to be the most recent incident of family violence on the applicant’s record. It is therefore highly relevant to the question of re-offending and rehabilitation. It is also worth noting that under questioning by the Tribunal, the expert forensic psychologist, Ms North, opined that the applicant’s risk of reoffending is in the low range, based on her assessment of him and should he continue to engage in treatment: T[74], [76]. In its decision, the Tribunal recounted Ms North’s evidence that she believed that the applicant is stable and that he has a high level of support from his wife and family, and that the risks of the applicant drinking and re-offending would be increased if his relationship with his current wife (i.e., PD) were to break down: T[76]. The Tribunal stated that it appears that an AVO was taken out in 2016 against the applicant to protect PD, but it accepted the evidence of a strong ongoing relationship between the applicant and his wife and that the expert evidence demonstrated that this relationship was very important to his prospects of rehabilitation: T[112].

58    As mentioned, the applicant specifically and clearly asserted in his SFIC that he has had no offences against PD, and that her evidence is that she holds no fears of him whatsoever. That qualifies as a clearly articulated representation, and it was backed up by specific and detailed evidence provided by the applicant and PD in the supplementary statements. For the reasons already identified, the representation was also highly relevant, in particular to primary considerations A and B the Tribunal was required to consider pursuant to Direction 90. The Tribunal was therefore required to engage with it and it failed to do so; the Tribunal ignored, overlooked or misunderstood relevant facts or materials in relation to a substantial and clearly articulated argument: Plaintiff M1/2021 at [27].

59    It is then necessary to assess whether the above-identified errors were material to the outcome of the Tribunal’s decision. As is apparent from the summary of the Tribunal’s reasons given above, the Tribunal’s findings about the applicant’s relationship with PD were centrally relevant to the exercise of the discretion to refuse the visa. If the evidence had been properly considered, different conclusions may have been reached in relation to the applicant’s risk of reoffending and rehabilitation, in particular the Tribunal’s finding that the applicant’s history of family violence from 2011 to 2016 weighed heavily in favour of exercising the discretion to refuse the visa: T[83]-[85] and T[89]-[90]. These matters were also relevant to the Tribunal’s finding that the nature of the applicant’s offences were such that the Australian community would expect that he not be given the privilege of holding an Australian visa: T[102]-[103].

60    The Tribunal noted that it was troubled by the prospect of the applicant being indefinitely detained, having acknowledged the existence of protection obligations owed to the applicant and the extent of the other impediments to his removal, being matters relevant to “other considerations” under Direction 90: T[124]. That the failure to engage with the supplementary statements in relation to events in 2016 contributed to findings about the applicant’s history of family violence and risk of reoffending, which subsequently resulted in the Tribunal “reluctantly” affirming the decision to refuse the applicant’s visa, reveals a “realistic possibility” that the outcome of the Tribunal’s decision could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [48]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2]-[3].

61    For those reasons, the Tribunal’s error in relation to the evidence in the supplementary statements of the applicant and PD amounts to jurisdictional error.

Disposition

62    The review application therefore succeeds. There is no apparent reason why the usual rule that the costs follow the result should not apply.

Associate:

Dated:    2 June 2022